YOUNG, Justice.
Appellant, surviving wife of R. Hal Compton, brought this action in Dallas
County against appellee for damages allegedly resulting from the burial of another in place of her deceased husband; such mistaken burial having occurred as a result of alleged negligence of appellees, sued as joint tort-feasors. Each defendant had heretofore filed motions for summary judgment, that of Sparkman-Brand being sustained. The appeal taken therefrom was ruled as premature by this court. See Compton v. Sparkman-Brand, Inc., Tex.Civ.App., 324 S.W.2d 906. Airlines’ similar motion was overruled and the parties proceeded to trial against American Airlines, when, after appellant had presented her case, motion of Airlines for instructed verdict was filed and sustained; resulting in a judgment in behalf of both defendants, from which an appeal is now prosecuted. The material facts as hereinafter portrayed, relate to each defendant, though the error complained of in grant of summary judgment in favor of Sparkman-Brand is presented in point 10.
In Airlines’ motion to remove the case from the jury and render judgment against plaintiff, it asserted as one ground therefor that the negligence of American Airlines had been interrupted by a new and independent cause; that is, the erroneous identification of the Beasley body as that of R. Hal Compton in Dallas by deceased’s brother Walter Compton, agent of plaintiff herein. This the trial court referred as a controlling reason for grant of the motion; and such is the burden of appellant’s initial point; asserting error in the court’s ruling “that there was a new and independent cause which broke the causal connection between appellant’s injuries and the appellee’s negligence for the reason that such determination by the court is an unlawful invasion of the province of the jury.” In this connection, we are mindful of the settled rule that “Where the verdict is instructed in favor of the defendant at the close of the plaintiff’s evidence, the court will assume that the facts shown by the plaintiff’s evidence are the true facts in the case. A presumption will not be indulged in favor of the court’s action in instructing a verdict where the evidence does not establish the appellee’s right to recover with such certainty that reasonable minds could not differ as to the effect thereof.” 4 Tex.Jur.2d § 802, pp. 320-321. Consistent with the quoted rule we will follow generally appellant’s statement under point 1 for a sufficient resume of the material facts.
R. Hal Compton died in Mexico City on June 21, 1957 and on the same date and in the same city one James Samuel Beasley, Jr., passed away. Both men were United States citizens and both bodies were later shipped back to this country by way of the same American Airlines. On that morning, plaintiff, Mrs. Maxine M. Compton, living in Owensboro, Kentucky, was notified of her husband’s death and together with daughter Mrs. Feldhaus secured airline connections and flew to Mexico City, arriving the evening of June 21st. They were there met by Judd Austin, for many years the attorney for Mr. Compton, who conducted them to the Gayosso Funeral Home for a view of deceased; Mr. Austin having made all the arrangements for embalming, etc. Being informed by Judd Austin that American Airlines freight plane was scheduled to leave for Dallas the following night, Mrs. Compton decided to have her husband’s body shipped back on that plane. To this end Mr. Compton’s body was placed in a dark brown casket and delivered by Gayosso Funeral Home to defendant airline at its freight office, destined to Walter Compton, a consignee and brother, at Dallas, care of Sparkman-Brand Funeral Home. Mr. Austin was present when the body arrived at defendant’s freight depot in Mexico City, who personally examined the identifying tag on the crate in which the casket was placed, finding it properly marked and labeled as containing the remains of R. Hal Compton; having no tags or marks on the crate in anyway purporting to identify it as the casket of James Samuel Beasley, Jr. When the two crates containing the bodies (Beas
ley and Compton) were delivered at defendant’s Love Field freight house on early morning of June 23rd, each crate had a ■white tag attached showing the same name "Richard Hal Compton Wolford”, defendant’s waybills for both crates having become detached. Airlines’ employees then attempted to match waybills with names on crates but to no avail, then weighing both crates, neither of the actual weights corresponding with weights shown on waybills. In the meanwhile, a Mr. Chaffin of Sparkman-Brand, who had already been notified of the arrival of the Compton body, was then informed by Airlines of the mix-up; calling Mr. & Mrs. Walter Compton, who resided in Dallas, that they must come to Love Field and attempt to identify the R. Hal Compton body. When the Walter Comptons arrived at the freight house at about S :30 or 6:00 o’clock in the morning, one of the caskets was opened; the other being sealed and could not be opened without use of hack saw or chisel; the Comp-tons identifying the body in the one open casket as that of R. Hal Compton. Excerpts of the deposition testimony of Mr. & Mrs. Walter Compton is here shown in footnote.
This casket was then closed and taken to Sparkman-Brand and from there forwarded to the Massey Funeral Home at San Angelo, where the funeral was to be held;
the other casket was never opened but forwarded by Airlines to Eufaula, Alabama. On the morning of June 24, 1957 plaintiff, having flown in to San Angelo from Mexi
co City, went again to view the body of her deceased husband, and after looking at the body in the casket, left the room declaring to all present that it was not that of her husband; pointing to difference in clothing from time she had last seen his body, also hair of head, shape and size of body; the undertaker finally convincing her that the changes were due to embalming methods at the Mexican Funeral home; Sparkman-Brand having dyed hair and changed outer clothing. Plaintiff then requested a closed-coffin ceremony at the San Angelo Funeral parlor and at graveside; a great number of friends from the United States and Mexico attending the funeral.
Immediately after the return of plaintiff and daughter to Owensboro, Kentucky they were notified of the mix-up and that the wrong body had been buried at San Angelo. Mrs. Compton then flew back to San Angelo and after viewing body which had been brought back from Eufaula, Alabama identified it as that of her late husband, remarking that there was little change in present appearance from that as seen on first view in Mexico City. Another similar graveside ceremony was then held.
Generally, we may assume that the inception of this “mix-up” lay in the omission of the Mexico undertaker to properly label both crates; contributed to by Airlines in acceptance of same for shipment thus insufficiently marked. In this connection, the trial court has ruled that such negligence of Airlines was interrupted by a new and independent cause; that is, the erroneous identification of the body of R. Hal Compton by his brother, the consignee and agent for plaintiff.
Free access — add to your briefcase to read the full text and ask questions with AI
YOUNG, Justice.
Appellant, surviving wife of R. Hal Compton, brought this action in Dallas
County against appellee for damages allegedly resulting from the burial of another in place of her deceased husband; such mistaken burial having occurred as a result of alleged negligence of appellees, sued as joint tort-feasors. Each defendant had heretofore filed motions for summary judgment, that of Sparkman-Brand being sustained. The appeal taken therefrom was ruled as premature by this court. See Compton v. Sparkman-Brand, Inc., Tex.Civ.App., 324 S.W.2d 906. Airlines’ similar motion was overruled and the parties proceeded to trial against American Airlines, when, after appellant had presented her case, motion of Airlines for instructed verdict was filed and sustained; resulting in a judgment in behalf of both defendants, from which an appeal is now prosecuted. The material facts as hereinafter portrayed, relate to each defendant, though the error complained of in grant of summary judgment in favor of Sparkman-Brand is presented in point 10.
In Airlines’ motion to remove the case from the jury and render judgment against plaintiff, it asserted as one ground therefor that the negligence of American Airlines had been interrupted by a new and independent cause; that is, the erroneous identification of the Beasley body as that of R. Hal Compton in Dallas by deceased’s brother Walter Compton, agent of plaintiff herein. This the trial court referred as a controlling reason for grant of the motion; and such is the burden of appellant’s initial point; asserting error in the court’s ruling “that there was a new and independent cause which broke the causal connection between appellant’s injuries and the appellee’s negligence for the reason that such determination by the court is an unlawful invasion of the province of the jury.” In this connection, we are mindful of the settled rule that “Where the verdict is instructed in favor of the defendant at the close of the plaintiff’s evidence, the court will assume that the facts shown by the plaintiff’s evidence are the true facts in the case. A presumption will not be indulged in favor of the court’s action in instructing a verdict where the evidence does not establish the appellee’s right to recover with such certainty that reasonable minds could not differ as to the effect thereof.” 4 Tex.Jur.2d § 802, pp. 320-321. Consistent with the quoted rule we will follow generally appellant’s statement under point 1 for a sufficient resume of the material facts.
R. Hal Compton died in Mexico City on June 21, 1957 and on the same date and in the same city one James Samuel Beasley, Jr., passed away. Both men were United States citizens and both bodies were later shipped back to this country by way of the same American Airlines. On that morning, plaintiff, Mrs. Maxine M. Compton, living in Owensboro, Kentucky, was notified of her husband’s death and together with daughter Mrs. Feldhaus secured airline connections and flew to Mexico City, arriving the evening of June 21st. They were there met by Judd Austin, for many years the attorney for Mr. Compton, who conducted them to the Gayosso Funeral Home for a view of deceased; Mr. Austin having made all the arrangements for embalming, etc. Being informed by Judd Austin that American Airlines freight plane was scheduled to leave for Dallas the following night, Mrs. Compton decided to have her husband’s body shipped back on that plane. To this end Mr. Compton’s body was placed in a dark brown casket and delivered by Gayosso Funeral Home to defendant airline at its freight office, destined to Walter Compton, a consignee and brother, at Dallas, care of Sparkman-Brand Funeral Home. Mr. Austin was present when the body arrived at defendant’s freight depot in Mexico City, who personally examined the identifying tag on the crate in which the casket was placed, finding it properly marked and labeled as containing the remains of R. Hal Compton; having no tags or marks on the crate in anyway purporting to identify it as the casket of James Samuel Beasley, Jr. When the two crates containing the bodies (Beas
ley and Compton) were delivered at defendant’s Love Field freight house on early morning of June 23rd, each crate had a ■white tag attached showing the same name "Richard Hal Compton Wolford”, defendant’s waybills for both crates having become detached. Airlines’ employees then attempted to match waybills with names on crates but to no avail, then weighing both crates, neither of the actual weights corresponding with weights shown on waybills. In the meanwhile, a Mr. Chaffin of Sparkman-Brand, who had already been notified of the arrival of the Compton body, was then informed by Airlines of the mix-up; calling Mr. & Mrs. Walter Compton, who resided in Dallas, that they must come to Love Field and attempt to identify the R. Hal Compton body. When the Walter Comptons arrived at the freight house at about S :30 or 6:00 o’clock in the morning, one of the caskets was opened; the other being sealed and could not be opened without use of hack saw or chisel; the Comp-tons identifying the body in the one open casket as that of R. Hal Compton. Excerpts of the deposition testimony of Mr. & Mrs. Walter Compton is here shown in footnote.
This casket was then closed and taken to Sparkman-Brand and from there forwarded to the Massey Funeral Home at San Angelo, where the funeral was to be held;
the other casket was never opened but forwarded by Airlines to Eufaula, Alabama. On the morning of June 24, 1957 plaintiff, having flown in to San Angelo from Mexi
co City, went again to view the body of her deceased husband, and after looking at the body in the casket, left the room declaring to all present that it was not that of her husband; pointing to difference in clothing from time she had last seen his body, also hair of head, shape and size of body; the undertaker finally convincing her that the changes were due to embalming methods at the Mexican Funeral home; Sparkman-Brand having dyed hair and changed outer clothing. Plaintiff then requested a closed-coffin ceremony at the San Angelo Funeral parlor and at graveside; a great number of friends from the United States and Mexico attending the funeral.
Immediately after the return of plaintiff and daughter to Owensboro, Kentucky they were notified of the mix-up and that the wrong body had been buried at San Angelo. Mrs. Compton then flew back to San Angelo and after viewing body which had been brought back from Eufaula, Alabama identified it as that of her late husband, remarking that there was little change in present appearance from that as seen on first view in Mexico City. Another similar graveside ceremony was then held.
Generally, we may assume that the inception of this “mix-up” lay in the omission of the Mexico undertaker to properly label both crates; contributed to by Airlines in acceptance of same for shipment thus insufficiently marked. In this connection, the trial court has ruled that such negligence of Airlines was interrupted by a new and independent cause; that is, the erroneous identification of the body of R. Hal Compton by his brother, the consignee and agent for plaintiff.
The issue of “new and independent cause” is, necessarily, a component of the ultimate issue of proximate cause. “ * * * is not an affirmative defense; it is but an element to be considered by the jury in determining the existence or non-existence of proximate cause.” Dallas Railway & Terminal Co. v. Bailey, 151 Tex. 359, 250 S.W.2d 379, 383. On the particular subject, it is stated in 30-B Tex.Jur. p. 230: “To break the continuous sequence of an antecedent cause the intervening, efficient cause must be a new and independent cause. By the term ‘new and independent cause’, or a phrase of similar import, used in definitions of proximate cause, is meant the act or omission of a separate and independent agency, which destroys the causal connection between the negligent act or omission of the defendant and the injury complained
of, and thereby becomes, in itself, the immediate cause of such injury.”
Appellant would point out that when the casket containing the body of R. Hal Compton arrived at Dallas it was properly labeled (both baskets marked with name of Compton) but that it was never opened and inspected; that the mix-up was due entirely to the incorrectly labeled casket of James Samuel Beasley, the one opened and inspected. In our opinion, while the prior negligence of Airlines should not be minimized, it was the erroneous identification of the Beasley body as that of deceased, R. Hal Compton that intervened as an independent agency; and thus becoming a classic example of new and independent cause. The identification by Walter Compton of the body viewed was positive; he knowing at the same time that both Airlines and Sparkman-Brand, for that matter, were relying on him entirely for an identification; having no way of determining which body was which unless and until identified by some member of the family; the facts demonstrating as a matter of law, in our opinion, the exercise by both defendants of that degree of care which an ordinarily prudent person under the same or similar circumstances would have exercised. Appellant seeks to invoke the settled rule that the intervening agency must not be set in motion by the party “who initiated the original act.” Airline Motor Coaches, Inc. v. McCormick, Tex.Civ.App., 186 S.W.2d 689, 690; pointing out that Walter Compton was called on to make identification by both defendants and used by them for their own purposes; and that a cause is not a separate and
independent agency
where it is set in motion by the party contributing to the original negligence. With this argument we disagree. Walter Compton was an independent agency, the consignee on the waybill, being the only person to whom the casket in question could be delivered for transshipment.
Moreover, it appears from the record that Walter Compton, consignee of the shipment, was negligent as a matter of law in thus mistakenly identifying the body, which negligence was imputable to appellant, precluding a recovery of damages under the well-established doctrine “that for injuries negligently inflicted on one person by another, there can be no recovery of damages for negligence if the injured person, by his own negligence or by the negligence of another legally imputable to him, proximately contributed to the injury.” 30-B Tex.Jur. § 88, p. 299. This specific defense was first alleged in defendant’s motion for instructed verdict; but the issues incidental thereto were tried without exception or objection. Rule 67, Texas Rules of Civil Procedure. Appellant’s point one must be overruled.
Defendant Airlines also pled in defense in motion for instructed verdict the provisions of the Warsaw Convention and International Air Cargo Rules Tariff, applicable to shipment of cadavers between the United States and the Republic of Mexico, providing among other things that no cause of action should accrue to any person for damages or any other matter or thing save and except the consignee on the airway shipment bill; that appellant was not a party to such contract of carriage; and that the trial court could as well have granted its peremptory instruction on such additional grounds. We will pretermit any discussion of these grounds though they have been fully briefed by the parties, in view of our disposition of appellant's point 1 embodying as it does her principal cause of action. (She asserts under point 7 her reliance for recovery for damages upon a tortious act of Airlines committed, at
Dallas,
Texas; reiterating it to be “uncon-troverted that when the body of R. Hal Compton reached Dallas it was properly labeled and enroute upon its designated course to San Angelo. It was at Dallas that the Compton casket became crossed with the Beasley casket and was then sent to Alabama.”)
Point 10 with respect to trial court’s grant of summary judgment in favor of
Sparkman-Brand, Inc., is also overruled; plaintiff’s contention being that genuine and material issues of fact exist concerning appellee’s negligence for failure to open both caskets. Whatever may have been the legal duty of Sparkman-Brand to appellant through Walter Compton, consignee, under the instant facts we hold as a matter of law that it likewise discharged that duty by exercising that degree of care which an ordinarily prudent person would have exercised under the same or similar circumstances. This conclusion is well stated in the second counterpoint of Sparkman-Brand that it having been employed by Walter Compton “to receive, handle and ship a dead body; and the evidence being undisputed that appellee did receive, handle and ship the body pointed out to it by Mr. and Mrs. Walter Compton, and to their satisfaction, there was nothing before the court to indicate that appellee owed to appellant a duty to make further investigation or inquiry as to identity of the body.”
The judgment in favor of both appellees is accordingly affirmed.
WILLIAMS, J., not sitting.